Evans v. Missouri Pac. R. Co.

• Decision Date: 03 May 1938
• Docket Number: 33245
• Citation: 116 S.W.2d 8,342 Mo. 420
• Parties: Roscoe B. Evans v. Missouri Pacific Railroad Company, a Corporation Appellant
• Court: Missouri Supreme Court

116 S.W.2d 8

342 Mo. 420

Roscoe B. Evans v. Missouri Pacific Railroad Company, a Corporation Appellant

No. 33245

Supreme Court of Missouri

May 3, 1938

Appeal from Circuit Court of St. Louis; Hon. M. Hartmann Judge;

Affirmed.

Thos J. Cole for appellant.

(1) The court erred in not sustaining the demurrer to the evidence either at the close of plaintiff's case or at the close of the whole case, because there was no proof whatever of any negligence of the defendant. Thompson v. St. Louis S.W Ry., 183 S.W. 631; Hawthorne v. Texas & N. O. Ry., 84 S.W.2d 1015; St. Louis & S. F. Ry. v. Cole, 27 S.W.2d 992; Western & A. Ry. v. Henderson, 279 U.S. 639; Wigmore on Evidence, sec. 2487. (2) The court erred in allowing the professional witness, Dr. Miller, to inject into the case the fact that this man was suffering from anemia, heart trouble, and had financial worries, and by not declaring a mistrial because of the improper injection of these matters into the case. 22 C. J. 269; Coghill v. Q., O. & K. C. Ry., 206 S.W. 912; St. Louis, I. M. & S. Ry. v. Bostic, 180 S.W. 988. (3) The court erred in allowing Dr. Miller to recite at great length an alleged history of plaintiff's ailments and alleged communication made by plaintiff to him, all of which was hearsay and improper, and largely related to past occurrences and conditions, especially as the plaintiff had testified in the case. Authorities under Point (2); (4) The verdict is excessive. Fitzsimmons v. Mo. Pac. Ry., 294 Mo. 551, 242 S.W. 915; Jenkins v. Mo. State Life Ins. Co., 334 Mo. 941, 69 S.W.2d 666; Cole v. Frisco Ry., 332 Mo. 999, 69 S.W.2d 344; Kinney v. Met. St. Ry., 261 Mo. 97, 169 S.W. 23; Newcomb v. Ry. Co., 182 Mo. 687, 81 S.W. 1069; Brady v. Ry. Co., 206 Mo. 509, 102 S.W. 978, 105 S.W. 1195. Res ipsa loquitur does not apply. Gallagher v. St. Louis Pub. Serv. Co., 332 Mo. 994, 59 S.W.2d 619; Vandenburgh v. C. & N.W. 174 Ill.App. 225; M.-K.-T. Ry. v. Sowards, 25 P.2d 641; Preslar v. M. & O., 185 S.W. 67; T. & P. v. Endsley, 129 S.W. 342; T. & No. v. Billingsley, 94 S.W.2d 268; C. & E. I. v. Reilly, 72 N.E. 454.

C. O. Inman for respondent.

(1) The demurrer to the evidence was properly overruled. (a) The evidence supported the inference that plaintiff was struck by some object protruding from one of the cars in the train. Burns v. United Rys. Co., 176 Mo.App. 330, 158 S.W. 394; State ex rel. v. Haid, 325 Mo. 107, 28 S.W.2d 97; Kane v. Mo. Pac. Railroad Co., 251 Mo. 13, 157 S.W. 644; Cech v. Mallinckrodt Chemical Co., 20 S.W.2d 509; Anderson v. Asphalt Distributing Co., 55 S.W.2d 688; Beaber v. Kurn, 91 S.W.2d 70; Setzer v. Ulrich, 90 S.W.2d 154. (b) It is negligence on the part of a railroad to operate its trains over a public street or crossing with an object projecting therefrom a sufficient distance that it is likely to strike persons lawfully using such crossing. Scott v. Davis, Agent, 270 S.W. 436; Schultz v. Erie Railroad Co., 46 F.2d 285; St. Louis-S. F. Ry. Co. v. Carr, 94 Ark. 246. (c) The petition pleaded a cause of action under the doctrine of res ipsa loquitur in addition to the Arkansas statute. Under this doctrine the evidence gave rise to an inference of negligence which did not disappear upon the introduction of defendant's evidence, and the question of defendant's negligence was, therefore, submissible to the jury. Bond v. St. L.-S. F. Ry. Co., 315 Mo. 1003, 288 S.W. 782; State ex rel. v. Bland, 64 S.W.2d 641; Conduitt v. Trenton G. & E. Co., 326 Mo. 143, 31 S.W.2d 21; Bartlett v. Pontiac Realty Co., 31 S.W.2d 279; Rockenstein v. Rodgers, 31 S.W.2d 798; Brown v. Winnwood Amusement Co., 34 S.W.2d 149; Price v. Met. St. Ry. Co., 220 Mo. 453; Meyers v. Independence, 189 S.W. 816; Zichler v. St. L. Pub. Serv. Co., 59 S.W.2d 654; Roscoe v. Met. St. Ry. Co., 202 Mo. 576, 101 S.W. 32; Hartnett v. May Dept. Stores Co., 85 S.W.2d 648; Williams v. St. L.-S. F. Ry. Co., 85 S.W.2d 624; Noce v. St. L.-S. F. Ry. Co., 85 S.W.2d 637; Glasco Elec. Co. v. Union Elec. Co., 61 S.W.2d 958; Sweeney v. Erving, 228 U.S. 233. (d) The burden of evidence shifted to the defendant, and the defendant failed to relieve itself of the imputation of negligence. It failed to show ordinary care in keeping a lookout for projecting objects as the train was moved along the public street. Whether it used ordinary care in inspecting the cars before moving them was a question upon which reasonable minds could differ -- hence it was for the jury. The evidence clearly and conclusively showed that plaintiff was injured by an object projecting abnormally from the train. Even though the inference or presumption arising therefrom be considered a rebuttable one, defendant's evidence in this case did not destroy it. (2) The testimony as to anemia and heart trouble was stricken out by the court, and was, therefore, not for the jury's consideration. The doctor had testified that plaintiff's low blood pressure was the result partly of the injury and partly of anemia. Hence, the defendant was not prejudiced in any event. Schulz v. St. L.-S. F. Ry. Co., 4 S.W.2d 762; O'Leary v. Scullin Steel Co., 260 S.W. 55, 303 Mo. 363; Hufford v. Met. St. Ry. Co., 130 Mo.App. 638. (a) It is proper for a doctor to state the present complaints of the patient. The testimony in this case did not relate to past history. Corbett v. Term. Railroad Assn., 82 S.W.2d 97; McHugh v. Transit Co., 190 Mo. 95, 88 S.W. 853; Lindsay v. Kansas City, 195 Mo. 166, 93 S.W. 273; Gibler v. Quincy, O. & K. Railroad Co., 129 Mo.App. 93, 107 S.W. 1021; DeCourcy v. Construction Co., 140 Mo.App. 169, 120 S.W. 632; Schulz v. St. L.-S. F. Ry. Co., 4 S.W.2d 762. (3) The verdict is not excessive. Evans v. Term. Railroad Assn., 69 S.W.2d 929; Stahl v. Railroad Co., 287 S.W. 628; Roads v. Kelleher Drayage & Warehouse Co., 26 S.W.2d 764; Kamer v. M., K. & T. Ry. Co., 32 S.W.2d 1075; Davis v. Bucks Stove & Range Co., 49 S.W.2d 47; Mitchell v. Wabash Ry. Co., 69 S.W.2d 286; Mann v. St. L.-S. F. Ry. Co., 72 S.W.2d 977; Dodson v. Gate City Oil Co., 88 S.W.2d 866; Margulis v. Stamping Co., 23 S.W.2d 1049; Hurst v. C., B. & Q. Railroad Co., 280 Mo. 566; Laughlin v. K. C. So. Ry. Co., 275 Mo. 459, 205 S.W. 7; Woods v. Term. Railroad Assn., 8 S.W.2d 922.

OPINION

Tipton, J.

This case comes to the writer on reassignment.

This is an appeal from a judgment of the Circuit Court of the City of St. Louis, wherein the respondent recovered $ 15,000 for personal injuries received on August 7, 1931, at Pine Bluff, Arkansas.

I. The appellant's first assignment of error is that the "Court erred in not sustaining the demurrer either at the close of plaintiff's case or at the close of the whole case, because there was no proof of any negligence of the defendant."

The respondent sought to recover under the res ipsa loquitur doctrine, and also under a right of action based upon a statute of the State of Arkansas.

The respondent was standing in the intersection of Fourth and Chestunt streets in Pine Bluff, Arkansas, on the date of his injury, awaiting the passage of the appellant's freight train on the southernmost of the two tracks laid in the center of Fourth Street, intending to cross over the tracks at the intersection. The train consisted of an engine, tender, and ten boxcars, and was proceeding eastwardly. The respondent was standing at a position of about four or five feet from the eastbound tracks, waiting for the train to pass, and while standing there was looking toward the east. After the engine and several cars had passed him, he was struck about the knees by some rigid object projecting from one of the cars, as a result of which his feet were thrown out from under him. As he fell to the pavement his left foot went under the train and was so badly crushed that it was necessary to amputate it about five inches above the ankle. The respondent testified that as he fell he had a glance of the object that struck him and that it was a "bar or rod or something of that kind," that it was not a wire, and that it was rigid. He also testified that before and at the time he was struck, there was no automobile within a block of him, nor did he see anyone about him.

P. S. Cambron, one of the trainmen, testified that he was sitting on top of the third car from the rear end of the train and on the north side of the car at the time of the accident; that he saw respondent standing within three or four feet of the train with his hands close to his body; that when the fifth or sixth car from the engine was passing the respondent, he suddenly went under the engine and then rolled out again; and that respondent was not attempting to get on the train but was standing still prior to the time he fell.

"Where the instrumentality which causes an injury is within the control of and operated by a party, and moves or operates in such a way that such motion or operation would not have happened except for some defect or negligent act, and injury to some person results, then the doctrine of res ipsa loquitur applies, and a plaintiff suing for an injury so caused has only to show control of the instrumentality by the defendant and its usual movements. It is then for the defendant to explain, if it can, the casualty, so as to exclude negligence on its part. [Ash v. Woodward Printing Co., 199 S.W. l. c. 997; Blanton v. Dold, 109 Mo. l. c. 75; Thompson v. Railroad, 243 Mo. 336, l. c. 354; Gibler v. Railroad, 148 Mo.App. 475, l. c. 484.]" [Mayne v. Kansas City Railways Co., 287 Mo. 235, l. c. 248, 229 S.W. 386.]

"Our court has held that the burden of proof never shifts and that the presumption raised by the doctrine res ipsa loquitur, relating as it does to the burden of proof remains in the case to the end and will take the case to the jury, notwithstanding the evidence, however probative,...